09 October 2018 – Just useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – Mob : +44(0)7791145923

>>> Notes on the UK BA pre-Settled and Pre-Settled Status roll-out programme from the recent UK BA meeting – how will the Settled and Pre-Settled process look like

“Roll out – the default position is that there is no personal checking of docs before applying. There is an app which allows you to take a scan of your passport. The app will read the passport’s biometric and pass the data to the UK BA. Other documents (eg evidence of residence) can be photographed or scanned by the applicant and emailed to the UK BA. Generally, only where there is something suspicious, or deficient, about a document, will a caseworker ask the applicant to submit an original by post.

There will be a personal check of docs if the applicant chooses not to use the app – they can send passports to the UK BA to be checked and sent back, or attend a face to face appointment to have their document verified and given back. And of course the UK BA reserves the right to ask for identity documents to be submitted for manual checks even if the applicant has used the app (for example if the chip didn’t read properly).

Applicants opened the web page by first choosing an EEA/other option. There is an option for a British citizen. It is assumed that choosing this option takes you to information for the British Citizen dual national citizens and the British Citizens and advises that you do not need to apply.

First the applicant registers an email, receives an email to activate, continues with the application and creates an account.

Roll out – simply does this more smoothly than was the case in the pilot.

Provide name (title can be problematic – some passports include it with the name, some don’t).

There is a male/female option.

Roll out – non-binary option is under discussion but is unlikely to be included as it does not exist for other forms of ID.

Option for entering relationships (family members don’t need to apply at the same time as the EEA national but it is generally advisable for the EEA national to enter them here).

Drop down box for indicating nationality. This does not include ‘stateless’ (which may be relevant for a family member).

Enter passport details or ID card details (see above re phone app which will auto populate all the personal data (name, DOB, nationality etc) included in the passport’s chip, as well as the passport details.)

Option for ‘any other nationality?’

Photo upload using webcam

Roll out – using mobile camera or upload. There is no requirement for a formal passport photo.

Confirm mobile number and address. Option to send correspondence elsewhere.

Two questions: Do you have permanent residence documentation? And Do you have indefinite leave? Enter reference numbers.

Roll out – these questions will be made clearer as they confuse those EEA nationals who have had nothing to do with any immigration controls. The person must have got evidence of Permanent Residence from the UK BA, not simply have acquired it.

National Insurance Number – record is checked within one minute on upload of the application.

Roll out – Some tax payments, and some benefits, are not proof of residence, so there will be work done to identify those in the NI records.

Convictions of any kind – give details.

Questions on war crimes/genocide etc. as per other application forms. Further info/definitions appear if you hover over the question.

Website then asks for £65 payment if you have not answered ‘yes’ to ‘do you have documented PR/ILR?’
Child fee is £32.50.

Credit card payment – someone else can pay for you if you don’t have a card.

Roll out – other options?

After the payment page, a page tells the applicant whether they are being considered for Settled or pre-Settled status (see below for criteria, meaning etc).

If you’re being considered for pre-settled status and you believe you should be considered for settled status you have the option to provide evidence to support this. If you choose to do so at this stage the next page will tell you which years of residence have a tick for residence accepted, and which do not. You can then upload or send documents to satisfy residence for those years where the NI record is insufficient, or provide evidence of residence for an en-tirely different period if that is easier (the NI look up defaults to searching for the most re-cent residence period). If you agree that you have not been resident for 5 years, then you just accept the pre-settled status. The UK BA wants to discourage discussion at this stage – if, for example, you get pre settled status, you can apply for free to upgrade to settled status, with evidence, at the point where you accumulate your 5 years’ residence. You don’t need to ar-gue about it or send any evidence about it at the initial stage. It’s meant to be simple – 5 years, or no 5 years?

You get the page with the details of the proposed decision and a reference number sent to your email.

If you want a copy of the information you have put on the application, you can download it.

Roll out – you can download it to your device or have it emailed to you.

That is it for the time being.

What happens next?

The application has to be checked by a human. At that stage the caseworker may call for any dubious documents to be sent in or ask for additional evidence, if required.
The caseworker is not looking out for fraud in relation to benefits or tax. If the proof of resi-dence box is ticked, eg. because in that year some NI payments have been made, or some benefits have been paid out, the caseworker does not see the full detail of that (eg employer name, amount of tax, benefit type etc). If there are missing years then the person may need to upload additional evidence, and the caseworker will see that and consider whether it meets the evidence of residence requirement. As per the published guidance, the evidence submitted does not need to be evidence of employment or any ‘permitted activity.’
The default position is that no documents are sent. The exceptions are where there are a very large number of pages which exceed the file upload limit (which they don’t envisage hap-pening as you don’t need much evidence for proving residence in any one year…..); or the caseworker calls for them – see para above.

Obviously the UK BA can’t make a policy statement that they won’t ever refer information to DWP/HMRC to prosecute fraud, but they’re not searching for it at this stage. There is no duty on the HO to pass on discrepancies to other government agencies. The HO does not want to ‘disincentivise’ people from applying.
There will be a security check run, as for all applicants for some form of immigration status. The caseworker will be interested in any discrepancies between security information and declarations on the application form and will ask for more information. The criteria for re-fusal are set out in the draft withdrawal agreement.

The UK BA said that they are not interested in minor offences eg. Driving penalties. Full details have been published elsewhere.

What does pre-settled status mean?

The easy answer is that it is a five year permit for those who cannot already evidence 5 years’ residence in the UK (you choose any period). After 5 years residence the person can apply for settled status. It is an immigration status only.

The statement of intent explains the other rights eg. It is not lost with up to two years’ absence from the UK, and in a footnote on p32: ‘They will continue to have to provide evidence that they meet the relevant eligibility requirements, eg. In any benefit claim or application for social housing, supported housing or homelessness assistance.’

The UK BA stated that there is no existing definition of ‘pre-settled status’ in benefits/housing law. The intention of the Settlement Scheme is to give security to resident EU citizens by regularising their immigration status, not to entitle people to mainstream benefits when they are not already entitled to them. The test for getting pre-settled status is anything from one day’s ‘residence’ in the UK up to 4 years and 364 days. Such a (potentially) short period should not on its own give rise to an entitlement to social benefits. The pre-settled status is just an immigration category. People with it will still have to comply with existing requirements for EEA nationals as to being qualified by exercising Treaty rights and by hav-ing the right to reside. The UK BA confirmed that before the end of the implementation pe-riod in Dec 2020 there will probably need to be legislation which determines what social benefits those with pre-settled status will have, in the period before they become settled and after the end of the implementation period when their (defined) EEA rights fall away.

The UK BA also confirmed that those who do not apply before the end of the grace period ie. June 2021, will have no recognised immigration status afterwards. (Therefore, until that point those who have not registered for pre/settled status will be relying on their existing EEA rights.)

The rights or status of people who enter by Dec 2020 and only register between then and June 2021: the UK BA said that as long as they enter by 23.59 on 31 December 2020 they are covered by the Withdrawal Agreement and can reside lawfully on that basis until 30 June 2021, by which time they must have made an application to the scheme.

What does settled status mean?

Note – this part is explicitly not confirmed by the UK BA policy people because it’s DWP policy: Settled status does have a meaning in benefits/housing law (it is like ILR) but it has not yet been defined in relation to that law in legislation. The intention is that those with set-tled status will be treated like those with ILR, and I understand that that is the case from the date of grant of settled status and has nothing to do with transition etc. Therefore, I under-stand that people with settled status will be subject to the hab res test in benefits law, as Brit-ish citizens are.
EEA nationals with ILR appear to gain an advantage by applying for settled status – it’s free to convert, it’s currently advantageous for family members of EEA nationals, and it’s not lost with up to 5 years’ residence abroad.

Will there be a hard copy document?

The UK BA confirmed that EEA nationals will not get a document. They will be able to print out the email and pdf of the letter confirming that they have pre/settled status but they will not be able to use it as proof of their status. It is an ‘online status’. They can share a log-on to the evidence of their status with an employer, landlord. It is more updatable, more practical.

Cards get lost, damaged, stolen, have room for less information.

The UK BA wishes to move to a ‘no documents’ system, so did not want to begin a card sys-tem for EEA nationals.
Non-EEA nationals will get a card like the existing BRP if they do not already have one.

Meaning of settled status for citizenship?

Settled status is a grant under UK immigration law. For those who get it on registration and did not have ILR or documented permanent residence before, their period free of immigra-tion control will begin on the day of the grant of settled status. The UK BA said nothing about proof of residence for being granted pre/settled status as having any meaning under the BNA, which requires proof of specific periods of residence.

The UK BA added that where someone wishes to demonstrate that they qualify for British citizenship sooner than one year from the grant of settled status they can continue to apply to have their permanent residence documented and that will retrospectively confirm the date they became from free from immigration time restrictions which can then be used to calculate the date that they qualify/qualified for British citizenship.”.